Judgement

Appeal and cross-appeal from a judgment and decree of the High Court (June 11 and August 26, 1915), which partly affirmed and partly reversed a decree of the Subordinate Judge of Rungpur.

The suit was brought by the first respondent against the appellant and the second respondent. The plaint prayed for (1.) a decree directing the first defendant to pay to the plaintiff Rs. 89,346, with

01 Law Rep. 42 Ind. App. 272 ( 1914- 1915) Sunitabala Debi V. Dhara Sundari Debi Chowdhurani

102

interest, (2.) that upon failure to pay within the time fixed by the Court, an 8 annas share of properties mortgaged by a bond dated March 5, 1907, be sold, and the whole of the plaintiffs dues realized, with necessary accounts, (3.) that if the whole amount due to the plaintiff should not be realized a decree against defendant No. 1 to pay the balance.

The facts and the effect of the decisions below appear from the judgment of their Lordships.

The mortgage of March 5, 1907, recited the circumstances of the pending litigation, and that by the agreement of January 16, 1907, in settlement of all litigation between the parties they had agreed " that in consideration of the sum of Rs. 1,60,000 to be paid to the said mortgagees, or the sum of Rs. 80,000 to be paid to each of the said mortgagees, by the said mortgagor, they the said mortgagees and each of them should convey" to the mortgagor their right title and interest in the estate and relinquish their claim to maintenance; recited that by an indenture the widows for the said consideration had conveyed and relinquished their claims as aforesaid ; recited that the mortgagor being unable to pay the said Rs. 1,60,000 to both or Rs. 80,000 to each of the said mortgagees as aforesaid had agreed to convey " unto the said mortgagees and each of them, not as joint tenants but as tenants in common, the messuages, lands, etc., described in Sched. A " and to transfer and assign the movables described in Sched. B, subject to the proviso for redemption therein contained; witnessed that in consideration of the " sum of Rs. 80,000 so payable to " the first mortgagee, and " the sum of Rs. 80,000 so payable to " the second mortgagee by the mortgagor, the mortgagor did thereby convey to the mortgagees, in the terms above set out and recited as having been agreed, the said messuages and lands and the said movable property, "provided that if the mortgagor or her heirs, etc., pay or cause to be paid by sums of equal amounts to each of the said mortgagees, their respective heirs, etc., the said sums of Rs. 80,000 with interest at 6 per cent, per annum .... then the said mortgagees, their respective heirs or assigns will separately .... reconvey .... to the mortgagor"; and witnessed that the mortgagor in similar terms assigned the movable property subject to a proviso in similar terms ; and the mortgagor " covenanted with the mortgagees as tenants in common and not as joint tenants .... to pay on September 5, 1907, unto each of the said mortgagees, their respective heirs, etc., the said sums of Rs. 80,000 " and the interest ; and provided that " if default should be made in payment of the two principal sums of Rs. 80,000, or the interest, or any portion thereof, by September 5, 1907, it shall be lawful for each of the said mortgagees, their respective heirs, etc., .... to enter upon hold and enjoy the said messuages, lands, etc., . . . ., and take the rents and profits of the same....."

1919. May 6. De Gruyther K.C. and Sir William Garth for the appellant. The suit as framed was not maintainable. The High Court was wrong in allowing the amendment which entirely arranged the character of the suit. Upon the merits, the appellant was pardanishin, and the plaintiff did not satisfy the burden of proof which was upon her of proving that. The Courts below did not give proper effect in the law upon that question. The whole transaction was manifestly improvident and detrimental to the appellants interest. It should not have